Thoughts from the interface of science, religion, law and culture

After spending several years touring the country as a stand up comedian, Ed Brayton tired of explaining his jokes to small groups of dazed illiterates and turned to writing as the most common outlet for the voices in his head. He has appeared on the Rachel Maddow Show and the Thom Hartmann Show, and is almost certain that he is the only person ever to make fun of Chuck Norris on C-SPAN.

EVENTS

How Will the SCOTUS Handle Marriage Equality?

The U.S. Supreme Court may decide as early as Friday which of the many cases involving marriage equality under appeal that they will hear. Chris Geidner has a rundown of all the various cases they could take on, which are the most likely, and what all the scenarios are for how they will handle them.
First, there is the appeal of California’s Prop 8, which was declared unconstitutional by both the district and appeals courts. Second, there are a number of appeals of the Defense of Marriage Act, particularly Section 3, which has been struck down by several federal district courts in different cases, and by two of the appeals courts. Geidner notes that at least one of the DOMA appeals is almost certainly going to be granted cert, but the Prop 8 case is kind of a toss up — they could accept it or not accept it, but doing so will require them to engage the question of whether bans on same-sex marriage are constitutional directly. Here are the four possibilities he lays out:

• The court takes multiple DOMA cases and the Proposition 8 case. This outcome would be the “all in” option, and it would make clear that at least four justices want the court to resolve the legal questions surrounding these issues, from what level of scrutiny that laws classifying people based on sexual orientation should be given (see more about this here) to whether gay couples have a constitutional right to marry. (The DOMA cases also feature the unusual circumstances, in place since February 2011, of the Obama administration opposing the law’s constitutionality and the House Republican leadership defending the law.)

• The court takes one DOMA case, while holding the other DOMA cases pending that decision, and takes the Proposition 8 case as well. This is not very different from the first possibility, although the choice of one DOMA case over another could be seen as narrowing the type of argument about the law that the court would like to hear. More likely though, it would simply be a sign of the justices having picked a case in which Justice Elena Kagan, who served as the top appellate lawyer in the Obama administration before joining the court and may choose to recuse herself from one or more of the DOMA cases because of that, can participate.

• The court takes a DOMA case (or multiple DOMA cases) and holds the rest of the cases, including Proposition 8, pending the outcome of the DOMA case. This prospect, advanced as a possibility by Georgetown law professor Nan Hunter, could be taken by a cautious court, wanting first to resolve some general questions — including the level of scrutiny to be applied to sexual orientation classifications — before acting on the other, more direct, question about whether same-sex couples have a constitutional right to marry that is raised in the Proposition 8 challenge. This, as with taking the Proposition 8 case, would delay when same-sex couples in California might be able to marry.

• The court takes a DOMA case (or multiple DOMA cases), but denies certiorari in the Proposition 8 case. This option, once considered by advocates to be the most likely possibility, would lead to same-sex couples being able to marry in California within days. The Ninth Circuit’s ruling in the case did not broadly resolve the marriage question, instead holding that Proposition 8 was unconstitutional because it took back rights formerly held by Californians. As there are other cases in the legal pipeline about same-sex couples marriage rights that could make their way to the Supreme Court, the court could decide to let the narrow Ninth Circuit decision stand.

I think the third option is the most likely, especially given Chief Justice Roberts’ preference for a court that acts incrementally rather than in broad strokes. I would not be surprised if he were to argue in conference that the court must first settle the question of what level of scrutiny the lower courts must apply to cases involving sexual orientation, then let the lower courts apply that standard and see where things end up before the Supreme Court should get involved in answering the more direct questions.

And I think there’s a good chance that Justice Kennedy would favor that approach. Like every case involving gay rights since 1987, Kennedy is the one who will determine the direction of the court. And his record is quite strong; he authored the two most important gay rights cases in the history of the court (Romer v Evans in 1996 and Lawrence v Texas in 2003). In both cases, he stopped short of applying intermediate or strict scrutiny, though he hinted at it, and applied only the rational basis test to reach the conclusion that both states laws were unconstitutional.

But the 2nd Circuit Court of Appeals, in striking down Section 3 of DOMA in October, explicitly applied heightened scrutiny and made very strong arguments for why the treatment of sexual orientation demands such a standard, citing Kennedy’s earlier decisions in the process. So this is not a question that the court is likely to dodge at this point. And the key, again, is Kennedy. And I think it’s pretty much a coin flip as to which way he goes.

Comments

I think that the court might well punt on the proposition 8 case as it was decided so narrowly, thus allowing the appeals court decision to stand.

The big question is what effect, if any, the three referendums that okayed same sex marriage will have on the court, especially Kennedy. As someone once said, the SCOTUS eventually follows the election returns.

In a pre-Obamacare ruling world, I like Ed’s perspective here. However, now I wonder if the dynamics on the court have changed since the Obamacare ruling. I was stunned at how blatantly political and partisan the conservatives were on that case, including Anthony Kennedy. Where I’m guessing the conservatives’ asses remained chapped.

I think this new context probably, hopefully, increases CJ Robert’s reluctance to take on cases which would result in broad ruling, consistent with what Ed points out, with Kagan also reluctant to accept DOMA cases in she’d probably recuse herself. And I just can’t trust what we saw out of J. Kennedy in the past will be repeated, he demonstrated an incredible level of emotional zeal on Obamacare, equal to the worst we regularly encounter of Antonin Scalia. Revenge might be forefront on his mind.

I was recently discussing the progress of the Prop. 8 case with a lawyer who is a friend of mine.

His informal opinion is that the conservatives will take the case out of fear of change in the makeup of the court in the relatively near future. He thinks they’ll want to rule in favor of Prop. 8 before Obama gets to nominate a more liberal replacement for one of the (aging) conservative justices.

whheydt @ 3 You bring up excellent points. I also wonder if “revenge” might inspire him to vote “for” marriage equality in opposition to Roberts’ probable “against” (and I think Kennedy might already support equality, at least to some degree, in this context).

The cert grant (and thus, the questions presented – a HUGE issue at this stage) all comes down to which side thinks it has Kennedy’s vote. I’m guessing that the more liberal bloc likes Windsor – the Second Circuit DOMA decision that said classifications based on sexual orientation get intermediate scrutiny. It seems to be the next logical step for Kennedy; he’s gone the “rational basis plus” route before, so now may be the time to go all in with a quasi-suspect classification ruling.

This case also has the benefit (as I think Ed mentioned above)that the Court won’t be required to rule directly on same sex marriage – affirming the Second Circuit just means that the feds can’t discriminate against folks who live in states that do recognize same sex marriages. Frankly, a ruling extending intermediate scrutiny to sexual orientation classifications would be a win of epic proportions. If that happens, the same-sex marriage issue falls into place quickly. Long story short: if Kennedy really wants to advance the cause of gay and lesbian civil rights, this is the road to follow.

I’ll second, third, fourth, or wherever we are on the Supremes not taking the Prop 8 case. DOMA can be dealt with without getting into the sticky issue of whether the rationale(s) of Loving v. Virginia can or should be applied to same-sex marriage. The abrogation of the Full Faith & Credit clause by DOMA is a lot easier cause around which to wrangle a majority . . .